Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 1984 of 2018 Petitioner :- Rama Sharan Respondent :- Murlidhar And 4 Others Counsel for Petitioner :- Ashutosh Upadhyay,Manish Goyal,S.C. Counsel for Respondent :- Vijay Bahadur Yadav,S.C.,Syed Mohammad Abbas Abdy,T.B. Pandey,Vinod Kumar Maurya
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the record.
The present petition is directed against the order of rejection of the temporary injunction application Paper No.6-Ga/2 passed by the first appellate court vide judgement and order dated 5.7.2014.
Submission of learned counsel for the petitioner is that the first appellate court while deciding the temporary injunction matter had virtually conducted a mini trial, which was not permissible.
Submission is that the first appellate court ought not to have entered into the rival claims of the plaintiffs and the defendants of having right in different portions of the suit property, with respect to which, the relief of partition has been sought. The contention is that the trial court has granted status quo order so as to protect and preserve the suit property and restrain the parties from changing its nature during the conduct of the trial.
The instant suit namely Original Suit No.1321 of 2010 (Rama Sharan v. Murlidhar & Ors.) has been filed seeking partition of the suit property as against the co-sharers. The submission is that, in case, the nature of the suit property is changed during the pendency of the trial, it would cause irreparable loss and run prejudice to the plaintiff. There was no occasion for the first appellate court to interfere in the conclusion drawn by the trial court.
Learned counsel for the respondents, on the other hand, supports the order impugned for the findings given therein.
Considering the said submissions, noticing the fact that the trial court has granted a blanket order of status quo which would amount to granting absolute injunction against the co-sharer, this Court is of the considered opinion that such an order cannot be allowed to stand.
Further, noticing the fact that the instant suit is for partition and has proceeded to the stage of evidence, in order to protect the interest of parties and to preserve the suit property to its position, it is required that both the parties be restrained from creating any third party right or alienate the suit property in any manner. They shall also be restrained from raising any new construction over the suit property, till disposal of the suit.
The trial court is further directed to proceed with the Original Suit No.1321 of 2010 (Rama Sharan v. Murlidhar & Ors.) making all endeavour to decide the same, as expeditiously as possible, preferably, within a period of eight months from the date of production of certified copy of this order.
It goes without saying that no unnecessary adjournment shall be granted to any of the parties.
Subject to the above observations and directions, the present petition is disposed of.
Order Date :- 27.2.2019 Jyotsana